Standing Committee B

[Mr. James Cran in the Chair]

Criminal Justice Bill

Clause 49 - Meaning of terminating ruling

Amendment proposed [this day]: No. 940, in 
clause 49, page 31, line 37, leave out from 'termination' to end of line 41 and insert 
 'or stay of proceedings for the offence, or one or more of the offences, included in the indictment'.—[Ms Harman.]
 Question again proposed, That the amendment be made. 
The Solicitor-General (Ms Harriet Harmanty 40
 ): Two substantive points have been raised, the first by the hon. Member for Somerton and Frome (Mr. Heath) and the second by the hon. Member for Woking (Mr. Malins). The first concerns the fact that although the second sort of terminal ruling is not, on the face of it, terminal, it affects something so central to the prosecution case, or presents such obstacles, that the case cannot continue. Its effect is terminal because the prosecution are not able to go on with the case if the ruling is made. 
 The ruling could be about inadmissibility of evidence. The prosecution might be clear in their mind that they will have to throw in the towel if that evidence is inadmissible because it is central to their case—it is something that they decided was essential when they considered the evidence in the first place. Alternatively, they might want public interest immunity. If the judge rules that he or she will not grant public interest immunity, they have to decide whether they are prepared to have the person's identity disclosed. If they are not, because it will put the individual in danger, which could be why they made the PII application, they cannot go on with the case. 
 The Bill says that the prosecution must, when mounting an appeal against a ruling the effect of which is fatally weakening, nail their colours to the mast. If they appeal on the basis that although not terminal in itself, the ruling's effect would be terminal, they must stick with that. They cannot go to appeal and lose, but say that although it is a shame that they have lost the appeal they will stagger on anyway. They must make it clear that they regard the ruling as fatally weakening to their case. Should they come back into court having lost in the Court of Appeal, they will be acknowledging to the judge that they can offer no further evidence and the case is finished. I hope that that answers the hon. Member for Somerton and Frome: it is subjective, in that it is from the prosecution's point of view. That is not necessarily clear when one reads the Bill. 
 The point made by the hon. Member for Woking was about stays of proceedings on the basis of abuse of 
 process. He said that such stays are very important. He is right. If a case is stayed, it effectively ends. Technically, it can be brought back—the stay can be unstayed—but effectively it has ended. That is an important tool for the defence and an important check on the prosecution. It is right that it should be there, but the question is whether we should exclude it from those rulings that can be appealed. I ask myself what would be the argument for excluding rulings on stays, which effectively end cases, when we have accepted the principle that other rulings that effectively end cases are appealable. The onus is on those who want to give the prosecution an extra power or opportunity to show why it is needed. 
 The Government have gone through the process with the Crown Prosecution Service and the Serious Fraud Office, and as a result I have given hon. Members some examples of rulings that are fatally weakening or terminal and of others that are stays. I give the health warning that all those cases are in advance of the law being changed as we hope it will be under the Bill. All the defendants in those cases were therefore acquitted. Some of those cases were subject to the Attorney-General's reference to the Court of Appeal on points of law, so we can say with confidence that the judge at first instance got it wrong. However, it was not thought possible or necessary to refer other cases to the Court of Appeal. 
 I ask the hon. Member for Woking to look at case 2, a famous if not notorious case that he may remember. A stay was put on that case, which was fatal to it. It would have been appealable if the law had been changed as we hope it to be. Several defendants were acquitted on charges of conspiracy to defraud on a large scale. The prosecution then sought to prosecute one of the defendants and other defendants for a further conspiracy to defraud which had been severed from the original indictment in order to keep the length and complexity of the first trial within manageable limits. 
 Everyone knew the scope of the criminality involved, but to try not to fry the jury's brains too much, it was separated into two cases. The first trial went ahead and the defendants were acquitted. The prosecution decided to go ahead with the second trial—the hon. Gentleman will know immediately which trial I am talking about—but the trial judge ruled that the second trial should be stayed as an abuse of process. The factors that he took into account were the similarity between the new counts that would form the basis of the second trial and those already tried, on which the defendants had been acquitted; the publicity to which the defendants had been subjected; the distress that they and their families had already suffered; and the fact that the first trial had ended in the acquittal of all the defendants. 
 The point is that that second group of charges was never put to a jury. That indictment was never tried, because the judge's ruling, which was then unchallengeable, finished off the case. The defendants were therefore able to walk away. It is important that the defence should have the ability to mount arguments about abuse of process, but we cannot argue that there is something distinctive about 
 a stay that justifies exempting it that does not apply also to other terminal rulings. For those reasons, we would not want to accept the spirit of the hon. Gentleman's argument.

David Heath: I thank the Solicitor-General for her explanation. It is now much clearer, to me as a layman, exactly what is intended. I do not think that one could reasonably have interpreted from the words of the Bill exactly what was intended, but she has now made it plain. May I also thank her for her very helpful chart? I share her hope that it becomes a standard work of guidance in that area and possibly bears her name in future because it will be a helpful guide for barristers who seek to follow the procedure.
 Amendment agreed to.

Harriet Harman: I beg to move amendment No. 941, in
clause 49, page 31, line 43, leave out 'against a defendant'.

James Cran: With this it will be convenient to discuss Government amendments Nos. 942 to 948.
 Amendment No. 988, in 
clause 52, page 33, line 26, leave out paragraph (a).
 Government amendments Nos. 949, 952 and 956.

Harriet Harman: This group of rather technical amendments picks up on the fact that trials often involve multiple offences and multiple defendants. The amendments are an attempt to avoid unintended consequences relating to other offences that are not the subject of an appeal. The prosecution should be clear what they are appealing about. If there are other defendants, they should be left on one side, and if there are other offences they can continue.
 To take multiple offences first, a judge's ruling may well affect several offences simultaneously. Where that is the case, the prosecutor may want to appeal against the ruling in relation to only one or other of the offences affected. The ruling might affect many offences of which the prosecution object to only one. We are therefore changing clauses 51 and 52 by means of amendments Nos. 945 and 948 to require the prosecution to specify which of the offences affected by the ruling they wish to appeal against. That is right because the Court of Appeal will be absolutely clear on the offence with which the prosecution is taking issue and the defence will be absolutely clear about what they face. 
 In line with those changes, we are also amending clause 54 so that proceedings for any offence affected by a ruling can be allowed to continue by the trial judge, provided that the ruling is not subject to an appeal in relation to that particular offence. A prosecution appeal should not stop the trial judge proceeding fairly and should not have a wider effect than is strictly necessary. 
 As it stands, clause 54 prevents proceedings from continuing if they are affected by a ruling. An offence may be affected by a ruling but if there is no appeal in relation to the ruling as it affects that particular 
 offence there is no reason why the proceedings for the offence should not continue. As amended, clause 54 will enable proceedings to continue in those circumstances. 
 Amendments Nos. 943, 944, 947 and 952 are consequential on the main amendments to clauses 51, 52 and 54, as are the first two limbs of amendment No. 956, which provides general rules for the whole of part 9. 
 Turning to multiple defendants, more than one defendant may take part in the same trial and a ruling may be made which affects an offence with which more than one defendant has been charged. A similar principle underlies the amendments. The judge may make a ruling that affects an offence with which several defendants have been charged, but the prosecutor may want to appeal against the ruling only as it affects one or other of those defendants. 
 The third limb of amendment No. 956 requires the court to treat an offence with which more than one defendant has been charged as a separate offence in relation to each defendant. That means that if more than one defendant has been charged with the same offence, the prosecutor in appealing must specify whether the appeal is directed against the ruling as it affects all the co-defendants, and if not, which particular one or other of them it affects. The amendment rightly requires more specificity than is in the Bill. It has the virtue that under clause 54, as amended, proceedings for an offence will be able to continue against one co-defendant when the trial of another co-defendant is put on hold by the lodging of a prosecutor's appeal against a ruling on the same offence. We want as little as possible to stop while interlocutory appeals go on. There can be a twin track: some of the defendants can continue to be tried, while one case is temporarily in abeyance because it is at the Court of Appeal. 
 Finally, amendments Nos. 941 and 942 refine clause 49 to make it clear that the point in clause 49(2) applies in cases in which any number of defendants are charged with the same offence, and where the outcome of the prosecutor's appeal may be the continuation of the same proceedings, rather than fresh proceedings. The motive underlying those amendments is the avoidance of unnecessary delay. It makes sense to allow proceedings not affected by a prosecutor's appeal to continue, where possible, provided that the trial judge considers it appropriate. The amendments allow the trial judge considerable flexibility and will contribute to the goal of avoiding unnecessary delays.

Humfrey Malins: I want to save most of my remarks for the clause stand part debate. However, I will speak briefly to my amendment, No. 988, which applies to clause 52, but is in this group. It is a probing amendment. Under clause 52, where a prosecution have a right to appeal against what appears to be a non-terminating ruling, they effectively have to give an undertaking that the case is all over if the appeal is abandoned or leave is not obtained. That seems slightly odd, because it may be
 putting the prosecution in a worse position than if they had accepted the ruling in the first place, even though the non-terminating ruling was potentially a little damaging to their case. By not appealing against the ruling, the prosecution might have continued to win the case, but by appealing, they are effectively saying, ''If we don't win on this narrow point, we are dead in the water.'' That seems a little odd, and I wonder whether the Solicitor-General will help me on that point.
 On the Government amendments, the Solicitor-General has explained, but I am not entirely clear why we are omitting the words ''against a defendant'' in line 43 on page 31. I assume that ''termination of proceedings'' must mean termination of proceedings against a defendant. I am not entirely sure what the removal of the words adds or subtracts in relation to that. 
 Finally, the Government want to amend the last line on page 31. In place of the words ''a fresh trial'', they want to substitute the words ''fresh proceedings''. I am not entirely clear in my mind about the difference between a fresh trial and fresh proceedings. Those are my only queries on that group of amendments; I will make other remarks in the clause stand part debate.

David Heath: There is one area on which I hope that the Solicitor-General will be able to help me. Obviously, it makes sense in terms of the management of the process and resources for proceedings to continue as far as possible while the appeal process carries on for a specific offence or defendant. I understand that. My concern relates to an appeal being lodged against a judge's ruling on admissibility of evidence, for instance, which is terminal to a particular prosecution, but may be prejudicial but not terminal to other prosecutions, in terms either of other defendants or of other offences being tried in the same proceedings.
 As I understand it, there would be no provision in that instance for that prejudice to be remedied by appeal before proceedings continued, unless the judge was prepared to make a ruling. If I have understood that correctly, can that be right and should there not be some sort of appeal process against such a ruling to make that consistent with the general approach that the Government are adopting? I can foresee circumstances in which a body of evidence might be ruled inadmissible, fatal to one case and damaging but not fatal to another. Under the rules set out here, as I understand them, the prosecutor would be able to appeal against that only on the basis of the case to which the inadmissibility is fatal, not that to which it is damaging. I hope that I have made myself clear on that slightly complicated point, and I should be grateful for the Solicitor-General's view.

Harriet Harman: The hon. Gentlemen have made the same point, but with slightly different examples. The hon. Member for Woking was probing why the prosecution must say, before applying for leave to appeal, that they will throw in the towel if they lose. He asked whether there could be a case in which a ruling is very damaging but could not be predicted to be fatal, so what is the logic of
 retaining stopping with terminal? That is a good question and we should think about it.
 We did not want to be widespread and allow a thousand flowers to bloom with everything happening in the Court of Appeal instead of at first instance. We wanted to take a narrower and more cautious approach, but the boundaries of logic can soon be tested. We will think about the point made by the hon. Member for Woking. 
 The hon. Member for Somerton and Frome made the same point in relation to a two-handed case and what happens if it is terminal in relation to one. That is clear, but if it is seriously weakening in the second case, that returns to the point made by the hon. Member for Woking and we will have to think about that. 
 Amendment No. 941 omits ''against a defendant'' in clause 49(1)(a) and is a simplification of the wording in the light of other changes to accommodate multiple defendants and defences. The hon. Member for Woking will be delighted to know that it is not a complication but a simplification. 
 Amendment No. 942 replaces the words ''a fresh trial'' with ''fresh proceedings'' and is, thank goodness, another simplification which is not intended to be a substantive change. I thought that the hon. Gentleman was going to ask me the difference between a fresh trial and a retrial. I know the answer, but he has not asked the question, so I shall not give the answer.

Humfrey Malins: I am not sure that I know the answer, and if the Minister knows it, it would be helpful if she would tell me, so that I also know it.

Harriet Harman: I walked into that one. A retrial is when there has been a trial but the jury were unable to agree and the proceedings start all over again with a fresh jury and a fresh judge. A fresh trial is when the original trial was abandoned part of the way through and the case goes to the Court of Appeal and is sent back for a fresh trial.

Simon Hughes: They sound the same to me.

Harriet Harman: The Committee will immediately see the intellectual distinction between the two.

Humfrey Malins: I am grateful to the Solicitor-General. I think that she has recognised that there may be some merit in our query about the point on clause 52 relating to the prosecution throwing their hand in. I am pleased that she has given me that response and will give it further thought. What she has said may be right, but if she will look at the matter again, I shall be grateful.
 Amendment agreed to. 
 Amendment made: No. 942, in 
clause 49, page 31, line 44, leave out 
 'a fresh trial of the defendant' 
 and insert 'fresh proceedings'.—[Ms Harman.]
 Question proposed, That the clause, as amended, stand part of the Bill.

Humfrey Malins: May I begin my remarks by adding my thanks to those of the hon. Member for Somerton and Frome for the chart that the Solicitor-General has given us, which we shall consider in due course in connection with the procedures when the appeals take place? However, we are dealing now with terminating rulings, and I want to put on the record precisely what we mean and do not mean by that phrase.
 I think that it is generally understood that a terminating ruling is one which terminates a case. There can be no issue about the two categories, and I hope that the Minister will confirm that the order of no case to answer and the issuing of a stay of proceedings as a result of an abuse of process are both terminating rulings. They are both undoubtedly, even in layman's terms, rulings that terminate a case: it is goodbye to the case. Will the Solicitor-General confirm that they are two terminating rulings and that, if a jury is discharged for one reason or another, that is not a terminating ruling but merely a ruling to discharge a jury? When a jury is discharged, it is a matter for the Crown whether it starts again: sometimes it does and sometimes it does not. 
 The two classic terminating rulings of a stay for abuse of process and a submission of no case to answer are well known to us all. Before lunch one or two examples were given of a stay for abuse of process. ''Stay'' is a more general term even than a stay for abuse of process. I suspect that one that may crop up in the future is a stay on the basis that one cannot get a fair trial because of the likely publicity—an infringement of article 6, I believe. Abuse of process is well known, and I do not need to go into it further now. 
 The submission of no case to answer is also interesting. It occurs when the position has been reached that there is some evidence, but it is extremely tenuous and inherently weak. If the judge concludes that the Crown evidence, at its highest, is such that a jury properly directed cannot properly convict, it is his duty on a submission to stop the case. That happened in the famous case of Galbraith. 
 At any stage during a jury trial the jury has a right to acquit of its own volition. From time to time the jury will send a note through saying, ''We've had enough of this. This defendant is not guilty. That is the end of the story. We don't need to go any further, thank you.'' However, the jury's decision cannot be put into practice without further observations from the judge. It boils down to what is very similar to a submission of no case to answer from the counsel, but this time the jury is saying, ''We will not convict. That's it.'' The jury has an inherent right to do that. What happens in that situation? Is that a terminating ruling? If not, what would be the consequences? If it is, would the prosecution have any right to appeal? 
 I do not know whether there are any other terminating rulings. I expect that the Solicitor-General will in due course tell me that several other rulings fall in another category and are, therefore, subject to slightly different rules; for example, the simple rulings that a judge may make at any stage during a case. There are so many, some of which are 
 major ones, that it would be helpful to know against which the Crown will be able to appeal. 
 The Solicitor-General mentioned the sort of ruling in which a piece of evidence is excluded by the judge. Such evidence may be a main plank of the prosecution case, such that its exclusion condemns the prosecution to certain failure. The prosecutor may say that he cannot carry on if a key piece of evidence is excluded. For example, evidence from an identification parade or identification on a voir dire—a trial within a trial—may be excluded by the judge. The judge is not stopping the trial by giving a terminating ruling, but he is excluding prosecution evidence so that the prosecution cannot possibly proceed. That would effectively result in an invitation by the prosecution to the judge to direct the jury—the defendant would be in the jury's charge at that point—to find the defendant not guilty because the prosecution will offer no further evidence. 
 There are many other examples of evidence that may be ruled in or out, for example, under section 78 of the Police and Criminal Evidence Act 1984 or under whatever the Bill says about day-to-day rulings. I have forgotten our discussions about evidence earlier in our proceedings. Are any rulings simply not appealable? There are some trivial rulings. For example, the judge may rule that he does not want counsel to ask a question. No one in their right mind would consider that such a ruling could possibly be subject to any form of appeal. 
 My observations at this stage relate to what I understand to be terminating rulings. If I have missed any, I am sure that we will come on to them later.

James Clappison: Let me take my hon. Friend back to his earlier remarks about the finding of no case to answer. Will he confirm that that usually, if not invariably, results in the judge inviting the jury to enter a verdict of not guilty?

Humfrey Malins: Indeed, my hon. Friend is right. In such a case, the judge will simply say to the jury, ''I have heard the legal argument and found that there is no case to answer. Therefore, members of the jury, I invite you to produce a verdict of not guilty on the defendant in your charge.'' I fear I have been somewhat discursive.

James Clappison: If the defendant has been told that he is not guilty, does not it follow that events should occur as quickly as possible if there is any prospect of an alteration to the verdict? An appeal against the terminating ruling may result in a retrial in which there would be the possibility of a fresh verdict of guilty.

Humfrey Malins: Yes, my hon. Friend makes a good point, which brings me on to an even better point. It occurred to me while I was listening carefully to his intervention. There must be a difference between a ruling by a judge that proceedings be stayed because of abuse of process, for example, and a not guilty verdict from the jury, which would follow a submission of no case to answer.

Stephen Hesford: I take the point of the hon. Member for Hertsmere (Mr. Clappison). In
 practice, if the prosecution are alive to the notion—because the submission is taking place they are presumably alive to the consequences—the court would be minded not to take the full step of getting a not guilty verdict. It would be interlocutory. If the decision went one way or the other, one would come to the formalities at some other stage. One would not be overturning a not guilty verdict, but making an interlocutory appeal against the terminating ruling.

Humfrey Malins: The hon. Gentleman may be right. In a situation under future law as we imagine it, on a submission of no case to answer accepted by a judge, he will not go that extra step and say to the jury, ''Bring in a verdict of not guilty,'' because he would be aware that the interlocutory appeal was effectively against his ruling.

Stephen Hesford: But it would be incumbent on the prosecution to put the judge in mind of that.

Humfrey Malins: I suspect that that is right.
 The Committee is entitled to hear about such matters. At first glance, I thought that my observation that there was a big difference between a jury being directed to find a verdict of not guilty and a judge staying a trial for whatever reason was quite a good point. Through the help of the hon. Gentleman's intervention, I think that we have probably cleared up the difference. That concludes my remarks on terminating rulings and the meaning thereof, but there will be other debates on other aspects later.

David Heath: I have one point to add to what the hon. Gentleman has usefully been saying about the definitions. It is an area into which I stray with some trepidation as a non-lawyer. I believe that I am right in saying that one terminating ruling might be a direction of nolle prosequi. Were that to be the case, I am not clear that that is a ruling by a judge of the Crown court, because it is a direction from the Attorney-General. I am not clear whether that is actioned by a ruling of the judge in court and therefore can be appealed against. Would the Solicitor-General help me on that point? It seems to me that there ought to be some right to appeal against that particular direction. I have thought of a mechanism by which it could happen.

Harriet Harman: The hon. Member for Woking helpfully set out the two major examples of terminal ruling. First, for an order that there is no case to answer, the judge will say, ''The case is too weak and there is insufficient evidence. I have to direct the jury that it cannot convict on the basis of the evidence; it just doesn't come up to scratch.'' Secondly, there is a stay for abuse of process. That might be, for example, a case in which someone cannot get a fair trial because of publicity.
 A jury discharged is not actually a terminating ruling, and that is made clear in the Bill. It is a matter for the Crown whether it starts again. It might be decided that the case has been gone through, all the witnesses are exhausted and it cannot proceed for those and other reasons. That is not a terminating ruling; it has been excluded. Discharge of individual jurors is also excluded. The judge can make orders 
 ruling for individual jurors to be discharged, but that is not regarded as a terminal ruling or appealable. 
 The hon. Gentleman asked about when a jury acquit of their own volition. Emphatically, the prosecution have no right of appeal against a jury's decision at any stage to come in with an acquittal. That is not on the agenda here. This is about moving from one judge—a first instance judge—up to a higher court. It is not about using the higher court to overrule the jury. That is not the case, and one can see that on the face of the Bill. 
 There are other examples of terminal rulings, such as that in case 4, which terminated the case but was not really recognisable as a no case to answer or a stay. The judge dismissed the case before the evidence had been called. A real example is that the defendant pleaded not guilty to the charge of possessing an offensive weapon. Before the prosecution could call their evidence, the judge directed an acquittal because he thought that a conviction was unlikely. On a reference by the Attorney-General under section 36 of the Criminal Justice Act 1972, which allows references to the Court of Appeal against such rulings, the Court of Appeal held that the judge had no power to make the ruling. If the Attorney-General already has an opportunity to take up such matters with the Court of Appeal, people might wonder what are we are doing.

James Clappison: We cannot do anything about it.

Harriet Harman: The hon. Gentleman has anticipated my saying that the review would not sort out that trial—it sorts out the law. It might shoot across the bows of a particular judge, but it does not actually do justice in that particular case because the case has fallen by the wayside. It is a technical, backward-looking review, but the judge directed an acquittal.
 That leads me neatly on to the point raised by several hon. Members: how can one have an appeal against a ruling when the effect of the ruling is that the defendant is acquitted because the case has fallen? The answer is that there is a sort of ruling interruptus whereby the judge, about to make his ruling, and because he knows he is going to do so, stops and says, ''I am minded to make this ruling,'' which would be terminating. In future, when judges are about to make rulings that are unequivocally terminating, they will have to give an indication in advance that they are minded to do so. The judge will say, ''I have heard arguments from both sides. I am minded to make this ruling in this case,'' which will have the effect of terminating it. That gives the opportunity for the prosecution to say either, ''We are going to apply for leave to appeal,'' or, ''Can we please have an adjournment overnight while we consider whether to apply?'' 
 That is where we get to the process map. Hon. Members have already forced me to amend the chart. What I should have put is, ''Proceedings in Crown court—judge indicates 'minded' to make terminal ruling''. Of course, he does not actually make it. If he had made it, the case would have been terminated.

James Clappison: I am grateful for the important point that the Solicitor-General has made. Will she
 confirm that what follows the scenario that she has described—where the judge has said that he is minded to make such a decision and the prosecution will then decide whether they want to enter an appeal against his terminating ruling—is that it is the end of that trial and it is for the Court of Appeal to decide whether there will be a fresh trial?

Harriet Harman: The answer to that is not necessarily, because the judge can decide at that stage. If a jury are empanelled for a long trial, they have agreed that they are free for, say, three months. If the trial has gone a long way and it is possible to get up to the Court of Appeal in three days, why discharge the jury and make another jury go through three months' worth of evidence when one can have a quick, interlocutory application up to the Court of Appeal to decide a point in the case? If it is a complicated point of law, and if the prosecution want to make something long and complicated out of it and the defence want to think carefully about how to deal with it, people might think that the jury will not be able to remember what they have heard. Therefore, the judge might say, ''On the basis of what we must now make the Court of Appeal decide, I shall discharge the jury''. If the Court of Appeal strikes down the judge's ruling, we get what we now know as a fresh trial.

James Clappison: We must be careful before assuming that a case can go to the Court of Appeal within three days and that it will all be heard quickly. Will there not be a problem with the type of case in which the judge is minded to enter a finding of no case to answer on the basis of what he has seen of the prosecution witnesses? He may find them unsatisfactory and unreliable and may not be willing to risk a conviction being founded on their evidence. Will the Court of Appeal then have to go through all that evidence, which has been tendered at second hand, and try, without having the benefit of seeing the prosecution witnesses, to second-guess the judge's decision?

Harriet Harman: To some extent that happens on a defence appeal, but the answer is yes. In a no case to answer ruling, the Court of Appeal must look at the judge's ruling. To the extent that the judge makes a ruling about evidence that the court has heard, the Court of Appeal might have to refer to the transcript.

James Clappison: The Solicitor-General is not quite on my point. I understand what she means when she says that that is what happens in appeals by the defence to the Court of Appeal, but in those cases there has been a conviction and the trial has come to an end. My point was one of time. How will all that happen in a time scale that allows the trial to be continued? The Court of Appeal will have to go through all the evidence tendered by prosecution witnesses to decide whether the judge was right in taking a dislike to them and not having confidence in their evidence, without being able to hear those witnesses, and will therefore necessarily have to go through the transcript of the trial.

Harriet Harman: The hon. Gentleman makes an important point. It was the second point that I responded to when I began my reply. The first was whether, in principle, it is fair and a good idea, and the second was whether it is workable.
 An assessment will have to be made of the length of time that the process will take. If it will take a long time, because the Court of Appeal is busy or the issue is long and complex and affects many other cases, the judge will be likely to discharge the jury and start a fresh trial with a fresh jury. Therefore, an assessment will have to be made whether to ask the jury to hang about or to discharge them. That goes to whether there will be an expedited process—the procedure with which we shall deal later. The trial judge will either say, ''This will be an expedited trial. I want it expedited because I have the jury here in my sight. The evidence is fresh in our minds. We want the case expedited,'' or he will say, ''We haven't started the trial yet. The jury is not even empanelled,'' or, ''We have only had the first day. I don't want it expedited.'' The trial judge will decide which of the two paths to take—expedited or not expedited.

Humfrey Malins: I may have missed something, but what is the position if a terminal ruling is made by a district judge? Does the appeal go to the Crown court or to the Court of Appeal? Do we need legislative measures to secure an arrangement whereby a terminating ruling from a district judge goes to the Court of Appeal or the Crown court?

Harriet Harman: Terminating rulings by district judges are not appealable under the clause. They are not affected.
 The hon. Member for Somerton and Frome asked about entering a nolle prosequi. Of course, the prosecution enter the nolle prosequi, and would not be likely to appeal against their own nolle prosequi. It is a way of stopping a case other than through the jury; the hon. Gentleman is right about that. There are three ways to stop a case: nolle prosequi, the jury or the judge. There can be no appeal against anything that the jury do to end the case. Nolle prosequi is entered by the prosecution so it is hardly likely to be subject to a prosecution right of appeal. We are talking about the judge's ruling to terminate a case. 
 The hon. Member for Woking asked me about a case where counsel wants to put a question and the defence argue that they do not want the question put, thus leading the judge to tell the counsel not to put the question. It might be critical. In the absence of the jury, they might all carry out legal argument about whether the question can be put. Are we thinking about a defence application in relation to the cross-examination of a prosecution witness, or are we thinking about a prosecution application in relation to cross-examination of a defence witness? A terminating ruling is like an elephant. One can recognise it when it comes lumbering through the doors of the court. If it looks like a terminal ruling, it is appealable.

Humfrey Malins: I am slightly stunned, but I think I get the point. If it looks like an elephant, one recognises it. I assume that within the ambit of non-terminating
 rulings, there is an application to treat a witness as hostile that is refused.

Harriet Harman: There might be. The hon. Gentleman can have a quick butcher's at clause 52, and advise me about the answer to that.
 I think that I have dealt with all the points that have been made. If I have not, we shall be returning to the current territory under subsequent amendments. 
 Question put and agreed to. 
 Clause 49, as amended, ordered to stand part of the Bill.

Clause 50 - Prosecution right of appeal

Humfrey Malins: I beg to move amendment No. 985, in
clause 50, page 32, line 6, leave out from 'evidence' to end of line 7.
 We now come to the even more interesting clause 50. Although colleagues will want to make observations in relation to clause stand part, my duty is to speak to the amendment. 
 Amendment No. 985 is a probing one, which does not need to be pursued seriously. I was seeking to omit the prosecution's right of appeal in relation to a ruling that there is no case to answer. I accept what the Minister has told us under clause 49, so I beg to ask leave to withdraw the amendment.

James Cran: It is not moved.
 Amendments made: No. 943, in 
clause 50, page 32, line 10, leave out '51(3)' and insert '51'.
 No. 944, in 
clause 50, page 32, line 18, leave out '52(2) and (4)' and insert '52'.—[Ms Harman.]

Humfrey Malins: I beg to move amendment No. 986, in
clause 50, page 32, line 25, after 'jury', insert 'or a juror'.
 Subsection (7) states specifically that the prosecution have no right of appeal in respect of a ruling that a jury be discharged. That is understandable. I inserted ''or a juror'' because it is a much more frequent occurrence in court for one or more jurors to be discharged. Sometimes there can be quite an argument about whether a juror should be discharged. 
 For example, I recall a case in which someone was charged with possession of cannabis. The jury were sworn and then one of the jurors stood up and said, ''Your honour, I do not think that possession of cannabis should be an offence, so I do not think that this is much of a business anyway.'' There followed tremendous argument about whether that juror should be discharged. The defence counsel took the view that it was helpful to keep the juror on board, while the Crown, not unnaturally, took the view that it was not so helpful. Eventually, the judge said to the juror, ''Well, never mind your personal views. Do you think that you can give the defendant a fair trial on the evidence?'' The juror said, ''Of course I can. I am just telling you my personal views,'' and the trial continued, so it was not a big issue. 
 Jurors do get discharged from time to time. The clause states that there is no right of appeal against the discharge of a jury, but the fact that the words ''or a juror'' are not in the subsection makes me wonder how I know it to be the case that there is equally no right of appeal in relation to the discharge of one or more jurors. That is the reason behind my amendment.

Harriet Harman: As in the hon. Gentleman's example, the prosecution and the defence can argue about whether it is right for a juror to be discharged, and that will carry on. The question is whether the prosecution need a right to appeal to the Court of Appeal about the juror. Up to three jurors can be discharged during the course of a trial and the trial can still go on. Therefore, it was decided not to include that provision: it is not included because the trial can carry on. There is no right of appeal.

Humfrey Malins: That was a helpful response. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause, as amended, stand part of the Bill.

David Heath: I just want to ask the Solicitor-General about subsection (6) and the question of the leave of the judge who made the ruling. In what circumstances could a judge not give leave for an appeal against a ruling that he or she made? The subsection is silent on the grounds that the judge will consider when deciding whether to give leave. Does the Solicitor-General have guidance that she would want to make known to a judge when exercising that discretion?

Humfrey Malins: We do not yet move on to the timings, which, I think, are dealt with under clause 51. I see the Solicitor-General nodding. There are a number of issues that I want to raise in relation to this clause. I need her help to decide in my own mind what subsection (1) means. It states quite plainly that the prosecution have
''a right of appeal . . . in respect of a terminating ruling''—
 well, we know what one of those is— 
''which is made before the time when the jury is sworn''.
 I leave aside the observation that it seems strange that all these rules apply to Crown court trials, whereas most trials take place before magistrates or district judges. There appear to be no similar rights for the prosecution there. My point is that a terminating ruling made before the time when the jury are sworn is quite likely to be an abuse argument—for example, on the fair trial point—and I understand that. However, the next part of the subsection is difficult because the right of appeal exists in respect of terminating a ruling that is made after that time but before the conclusion of the prosecution's evidence. That means that if a ruling is made before the conclusion of the prosecution evidence, there is a right of appeal, but if it is made afterwards there is not a right of appeal, and I should like to know why. 
 For example, it is possible to envisage a situation in which the Crown's evidence is completed. The Crown says, ''Your honour, that is the case for the Crown.'' 
 Immediately thereafter, an argument comes from the defence that the defendant has only been able to form a view about the nature of their application, namely an abuse argument, as a result of listening to all the Crown's evidence. It may be that the abuse argument takes place only after the conclusion of the Crown's evidence. Indeed, it may be that the abuse argument can be made only later in the case because the facts that give rise to it may not happen until after the Crown case is completed. I have invented that case, but it might well happen because notes are often passed in court from one person to another. 
 Envisage a situation in which at the conclusion of the Crown case a note, which has been passed by the officer in the case to the chief Crown witness who is another police officer, is discovered—this will not happen in practice, because the police have integrity, but we need to get the law right. Imagine if the note were found in a wastepaper basket just after the defendant had given his evidence. The note states, ''Dear Fred, your evidence was good—we both know he's not guilty of this one but he's guilty of lots of others, and I think we've got him potted this time,'' signed John. That note is from the chief officer in the case to the chief Crown witness. 
 At that stage, there will be an application for a stay for abuse of process. Indeed, the evidence for abuse of process arguments may crop up only later in a case, which is why I have queried whether the prosecution have the right to appeal on terminating a ruling. The right is limited to something that happens before the conclusion of the prosecution's evidence. I can think of all sorts of rulings that might be made later in cases that are not covered by the provision: for example, rulings well after the prosecution evidence has been completed concerning whether the defendant has good character. Such rulings can be made at any stage during a case. That also applies to the ability to allow or disallow a particular piece of evidence. My query is on why there is a limit on the timing of a ruling, although the Solicitor-General has obviously dealt with the issue of the district judge. 
 Subsection (9) states that 
''a ruling that there is no case to answer includes a reference to a ruling that a jury properly directed cannot properly convict''.
 That seems to be an unnecessary addition, as the one is exactly the same as the other. It is another way of saying that a ruling that there is no case to answer means a ruling that a jury, properly directed, cannot properly convict. I have no idea why that provision is in the clause, as it adds nothing to the sum of our knowledge, and the Solicitor-General may want to take it out.

James Clappison: I wish to raise a query about subsection (3). In his earlier remarks, my hon. Friend the Member for Woking rightly asked the Solicitor-General whether there was to be a prosecution right of appeal in rulings other than terminating rulings. I suspect that the answer may lie in subsection (3), which appears to give the prosecution a right of appeal against rulings made by judges that are not terminating rulings. However, it
 seems evident from the clause, from what follows in clause 52 and from what the notes on clauses say about subsection (3) that such an appeal will take place only in respect of serious rulings for the prosecution case:
''rulings which are so damaging to the prosecution case, that, but for the right of appeal, the prosecution would terminate its case.''
 I understand that, but I want to ask the Solicitor-General how it will work in practice. 
 Under subsection (3) the prosecution has the right of appeal against rulings made by the judge either before the jury are sworn, which is paragraph (a), or after they have been sworn but before the conclusion of the prosecution evidence, which is paragraph (b). The Solicitor-General will know that it is common for such rulings to be made in the absence of the jury after they have been sworn. There may be hearings in the absence of the jury on matters relating to, for example, the Police and Criminal Evidence Act 1984 or the admissibility of interview evidence, which may be important to the prosecution case. 
 Under subsection (4) it appears that that right of appeal will be subject to clause 52(2) and (4). If the prosecution decide to enter such an appeal, it is a nuclear option. If they take an appeal to the Court of Appeal and they are not successful, they must throw their hand in and abandon the case. How will that work in practice? In particular, what happens to the original trial and jury while those proceedings are taking place? In the scenario envisaged in the clause, the jury have been sworn in, evidence has been heard in their absence, the prosecution do not like the judge's ruling and they appeal it to the Court of Appeal. What happens to the original trial and jury? 
 The case may go to the Court of Appeal, which may decide to uphold the judge's ruling. If it does, the prosecution must throw their hand in: the case must go back to the court. What happens if the Court of Appeal decides to allow the prosecution's appeal? Does the case go back to the original jury or will there be a fresh trial? We want to hear a little about that. Without further guidance from the Solicitor-General, that scenario seems to envisage the original trial and jury being left hanging in the air while the Court of Appeal reaches a decision on the prosecution's appeal. How will it work?

Harriet Harman: The hon. Member for Hertsmere asked why it had to be the nuclear option. I said that the intention was that it should be constrained narrowly to only the most serious cases, but the hon. Member for Woking referred to fatally weakening cases where it would not be right to take only the nuclear option, and I said that I would consider that question.
 If the case went to the Court of Appeal and it found against the prosecution, the case would go back to the trial judge, who would direct an acquittal—assuming that the proceedings had been adjourned, as opposed to the jury having been discharged. If there were no jury waiting for the case to return, the case would simply not restart. It would depend on whether the matter was expedited or not.

David Heath: In that instance, would the defendant have been acquitted? No jury would have been directed to acquit.

Harriet Harman: No. The defendant would not have been acquitted. It is still the case that once the defendant has been acquitted, that is it, in the context of these provisions. We are not dealing with double jeopardy. Once the judge has directed the jury to acquit the defendant, or the jury have acquitted him, that is it.

David Heath: Perhaps I did not explain myself very well. From what the right hon. Lady said, I take it that if the jury is still available, that is fine; I understand that. If the case is sent back to the jury and the judge gives a direction to acquit, the person is acquitted. However, she said that if the jury have been discharged, proceedings will simply not be restarted. That will, as I understand matters, leave the indictment standing. No acquittal will have been entered.

Harriet Harman: If the Court of Appeal confirmed the judge's ruling and did not allow the prosecution appeal, it would order an acquittal under clause 55, which we have yet to reach. When we do, all will become clear.
 I do not know whether I have yet dealt satisfactorily with the point made by the hon. Member for Hertsmere.

James Clappison: I was not challenging the nuclear option—it just seemed an appropriate way to characterise clause 52(2) and (4). I really wanted to know about timing. The Solicitor-General has dealt with what would happen if the Court of Appeal decided to uphold the ruling under clause 55. What would happen if it disagreed with the judge's ruling, overturned it and ordered the case to be sent back? Would it then be tried by the original jury, who presumably would have been waiting while the case was adjourned?

Harriet Harman: It would depend on whether the jury had been discharged. If the jury were still empanelled for the case, that case could return to the same jury. When legal arguments are necessary, the judge hears arguments in the jury's absence, and the jury must wait. Effectively, instead of the jury waiting while legal argument took place in their absence in the court where the case was being tried, they would wait while legal argument took place first in that court and then in the Court of Appeal. However, if the process was likely to be prolonged, the judge would discharge the jury and the case would not be dealt with as a fast-track procedure.
 The judge, wanting the case expedited, might decide to keep the jury and nip quickly to the Court of Appeal, only to find that the Court of Appeal could not hear it because all its cases had overrun. In that case the judge would have the option to decide to discharge the jury, matters having turned out more complicated than he thought. Decisions would be made on a case-by-case basis, depending on whether the jury were waiting for the case to be sent back from the Court of Appeal, or whether they had been 
 discharged. If the prosecution objection were upheld, a fresh trial with a new jury would be held. 
 The hon. Member for Woking asked why, under subsection (1), the right of appeal exists only up to the end of the prosecution case, or when there is no case to answer. He asked about a terminal ruling, other than no case to answer, coming after the prosecution case. However, the Law Commission report, from whence the provisions sprang, goes straight from what happens during the prosecution case to a ruling of no case to answer, so the answer is not immediately evident. I am sure that there is a good reason for that, but I will have to get back to the hon. Gentleman. 
 The hon. Gentleman asked about subsection (9). It might not be necessary to drag this out, although it might be—[Laughter.] This is a serious point. The provision was included because there may have been a problem otherwise. A ruling of no case to answer can be made if there is no evidence that the defendant committed the alleged offence, or if the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it. The first limb is regarded as a point of law, while the second involves the judge coming to a conclusion on the evidence. Subsection (9) is intended to ensure, for the avoidance of doubt, that the expression ''no case to answer'' is readily construed as encompassing both limbs.

Humfrey Malins: Was there any doubt about that?

Harriet Harman: Well, one never knows. There might have been a doubt in future cases, so why not avoid it? We should seek to avoid doubt, as long as we are clear about why we have included the provision.
 The Law Commission took the view that the vast majority of terminating judicial rulings took place during the prosecution case. It therefore recommended that the right of appeal should be available up to the end of the prosecution case, as we discussed. However, we are also aware that the judge may withdraw a case from the jury at any point during the trial, following a ruling of no case to answer. We are aware that there is some inconsistency in the clause, and we are considering how best to approach the issue. We will note the hon. Gentleman's points when considering it. Indeed, there has been some mind-reading going on, and his mind has already been read. His points are well taken, and I hope that I have dealt with them all.

David Heath: The Solicitor-General did not deal with the circumstances in which a judge might not grant leave.

Harriet Harman: I beg the hon. Gentleman's pardon. On what basis will the trial judge or, indeed, the Court of Appeal decide when to grant leave? The trial judge will hear the prosecution argument, and if he thinks that it is entirely without merit—that it is one of the worst arguments that he has ever heard—he might not be happy to give leave. He might think that the Court of Appeal will say, ''Why on earth has this judge given leave? Why is our time being taken up with this entirely unmeritorious point?'' If it is an open and
 shut case, therefore, he might be minded to refuse leave, and the prosecution can apply to the Court of Appeal for leave. If he thinks that it is a difficult, agonising decision, however, he is likely to send it to the Court of Appeal. I think that the parameters for deciding applications for leave will become clear to judges once the Court of Appeal starts handling these issues.
 The rules governing applications for leave will be the same as those that apply to everything else. Leave is basically a tripwire, which will ensure that really unmeritorious cases do not get through. In the Law Commission's report there is some discussion about whether that tripwire should be ''only with the DPP's consent'', or only ''referred as by the Attorney-General''. We have dealt with the matter by saying that leave must be granted. In that way, the Court of Appeal will not find itself obliged to hear arguments that it does not really think that it should be hearing.

James Clappison: Will there be a process for the seeking of leave to appeal to be expedited?

Harriet Harman: A case will either be expedited or not. There are two aspects: the application for leave and the hearing. The application has to be expedited in that it must be done on day 2. The applicant cannot hang around considering whether it applies; he must make his mind up and go for it. The Court of Appeal's hearing of an application for leave, its having been refused by the judge in the first instance, will depend on whether it is an expedited case.
 Question put and agreed to. 
 Clause 50, as amended, ordered to stand part of the Bill.

Clause 51 - Appeals against terminating rulings

Humfrey Malins: I beg to move amendment No. 987, in
clause 51, page 33, line 4, after 'adjournment', insert 
 'which shall be for a maximum of one day'.
 We come now to some vital issues, which are encompassed by the one word ''timing''. That is critical and the amendment is designed to tease it out. It relates to the prosecution's request for an adjournment to consider whether to appeal and the obligation on the judge to grant such an adjournment. 
 We have to get real, as I have often said on this Committee, and consider what happens in court. We might like to think that every case is handled by Kavanagh QC, or somebody of such erudite standing in the legal profession as the Solicitor-General, but that is not the case. As often as not, cases are handled by some young barristers, barely called, or by those who are so old that they have forgotten everything and are doddering around. They are not always of the calibre that is found at the top end of the Bar, which can be a problem. In practice, it means that the prosecutor will say that he would like an adjournment in order to consider whether to appeal. The amendment insists that the adjournment should be 
 for no more than 24 hours, because the Bill specifies no time limit within which the decision to appeal or the application must be made. Am I wrong? Is a time limit specified anywhere in the Bill so far as that adjournment is concerned? 
 Normally, when appeals are made from magistrates courts to the Crown Court or from the Crown Court upwards, there are strict time limits. If one does not abide by them, one is in deep trouble—one has to apply for leave to apply out of time. The prosecutor, who has requested an adjournment under subsection (3)(a)(ii) to consider whether to appeal, must have, by statute, some constraint upon him to decide quickly. If he has not, what will happen in practice is that the prosecutor will request an adjournment in order to consider the matter, and when asked how long he would like he will say, ''Well, I am going on holiday tomorrow and I need to speak to my head of chambers and take advice. In fact, I only got into this case this morning because my fellow barrister who knows all about it got a much better case and I was given the dross. That is why it is before you and why I am here today.'' That is the sort of thing that is often said. The barrister will ask for a week, a fortnight or five days. Where is the constraint that I seek to impose on him to make up his mind within 24 hours, one way or the other, on whether to take advice?

David Heath: The hon. Gentleman is making an important point about time limits, but does he actually mean 24 hours or a sitting day?

Humfrey Malins: The amendment was badly drafted. I really mean a sitting day, which is much better—indeed, one might say overnight. Again, the consequences on timing are very severe if the barrister comes back to court and says, ''I have been advised by those in my chamber who are more senior that it is a good idea to appeal because we can get legal aid for it, which is helpful to us.'' The prosecutor will make his decision known to the judge, who must then grant an adjournment.
 This is a serious issue. What is the judge to do? First, how does he get the barrister back the next day? What does he say to the jury? ''Members of the jury, the barrister needs time to sort out certain matters. I have made a potential ruling today and the barrister wants to consider whether to appeal. Today is Monday, but he cannot come back until Friday.'' What are the jury to do? ''Can you come back on Friday? You must observe my stricture. You cannot talk about the case except among yourselves.'' Under the Bill, the jury is sent back into the real world without the slightest indication of how long they will be there. That is the problem. 
 If the barrister says that he will appeal, there is the absurd business of an expedited appeal to the Court of Appeal, but there will be no such thing. Can the Solicitor-General guarantee that appeals to the Court of Appeal will be heard within two or three days?

James Clappison: Will my hon. Friend bear in mind the fact that not only will we have to have expedited appeals but we will also have to have expedited leaves to appeal in cases in which the initial judge has decided not to grant leave to appeal?

Humfrey Malins: My hon. Friend is absolutely right. If there is an initial refusal, there might have to be an expedited application for leave to appeal with the consequential follow-on delays. However, if an appeal to the Court of Appeal is to take place, there is no chance that it will be heard the next day. Apart from anything else, how will the court receive the papers? In any court, there has to be not just a résumé but a complete record of every word that has been said in the trial. Such records are not made overnight. A shorthand writer has to set everything out and, in addition, counsel on both sides and the judge must have an opportunity to read through the record to agree the transcript. Otherwise, it might go out in an inaccurate form.
 How long does such a review take? How long does it take to produce a transcript of the trial? How long does it take to get a hearing before the Court of Appeal? Is the Solicitor-General saying that such cases would not occur more than once a year? If there were many of them, it would be impossible to envisage hearings taking place within a week or two weeks. 
 What happens if the judge does not seek an expedited hearing? Why should it be expedited? What is the difference between a non-expedited and an expedited hearing? An expedited hearing will be heard quickly, but a non-expedited hearing may be heard considerably later. There is a tremendous problem about what to do with the jury during the interim period, which could run to many days. What will happen to jurors who are doing their fortnight, which is usually the time that one spends on a jury, and who start, perhaps, a third trial, which has been listed for three days, on Wednesday of the second week? The trial is to finish on Friday, but if there is a ruling on Thursday afternoon that will be appealed, the jury could be scattered for the next week or two, completely unable to reassemble for obvious, nuts-and-bolts, practical reasons. 
 What does the judge do meanwhile? Will he know straight away that the whole of the issue will be resolved within three to four days? What happens if the judge is asked, ''Can you start another trial?''? Court time will be wasted. Is it not much more likely that in practice judges will have to discharge juries? They will know that those things do not happen overnight, that it will take days, if not weeks, to reach a conclusion, and that it would therefore be much simpler to discharge a jury. That point brings me on to whether there would be a right to object to the discharge of a jury. Either the defence or the Crown might think that the case is going especially well or especially badly before a jury, and might have a view about discharging that jury. 
 Much will boil down to expense. The Minister knows, because there has been a parliamentary answer confirming it, that the cost of a Crown court amounts to some £8,500 a day. That was three years ago, and I am sure that the figure is well over £9,000 a day now. That is a huge expense. How many days will be wasted? Has anybody in the Home Office, in drafting the astonishing provisions that we are dealing with, 
 had any concept of the likely extra expense and burden that will be put on the Crown court system? 
 I might be utterly mistaken, but I have a feeling that there is a right of appeal from the Court of Appeal to the House of Lords. I hope that I shall be told to sit down straight away if I am completely wrong on that. However, clause 56 seems to give a right of appeal against a decision by the Court of Appeal to the House of Lords. If that is right, we have the whole thing all over again—that is, the Court of Appeal having to produce all the papers and the House of Lords having to deal with the matter. In short, unless we can inject into the Bill a mechanism whereby the appeals must be dealt with quickly and, in particular, the application for an adjournment must be made within 24 hours or one working day, the whole thing will be left loose. If that happens and a strict timetable is not imposed, there will be long and expensive delays that will not be in the interests of justice, the jury or the defendant. Hence, the amendment would ensure that the adjournment that the court gives to the prosecuting counsel to enable him to make up his mind as to whether to appeal is long or short—or an adjournment of some length or no length. We need to know.

David Heath: It seems to me that the hon. Member for Woking has hit on a good point, which is that the provisions are silent on the appropriate length of the adjournment. That might be intentional, but it is left to the good offices of the judge in the High Court to determine what is appropriate. However, things could go either way. An especially irrational or impatient judge might allow a prosecution only a short adjournment to determine whether they wished to appeal. The judge might decide that his ruling was so transparently clear and non-threatening to the prosecution case that he did not intend to allow the prosecution appropriate time in which to consult on whether to proceed.
 It is more likely that the reverse will be the case, and that there will be a delay in the process. I can envisage cases in which that is so because the prosecuting counsel is particularly dilatory, wants to take a skiing holiday when there are more important things to do, or whatever. In the case of admissibility of evidence, persons entirely outside the control of the prosecuting counsel could occasion the delay. For instance, in a public interest immunity case, the matter could be in the hands of a Minister, who might take a less than rapid approach to the subject. 
 There are inherent problems with having no indication of the appropriate length of the adjournment in which to consider the matter. The hon. Gentleman has a point. Frankly, I do not think that leaving a complete silence on the issue is in the interests of making the provision work effectively and efficiently. I hope that the Solicitor-General might accept that as a genuine point of view that should be addressed.

James Clappison: My hon. Friend the Member for Woking has made some important points, and the hon. Member for Somerton and Frome was right to support him. It is in the same spirit that I raise another point with the Solicitor-General, which might be relevant in relation to the important question of time.
 I hope that I am not being too pedantic, but I ask the Solicitor-General for clarification of what happens when there is no adjournment because, under clause 51(3), following the ruling, the prosecution must inform the court that it intends to appeal. How does the Solicitor-General envisage paragraph (a)(i) working? The prosecution must inform the court that it intends to appeal following the making of the ruling. What time scale is envisaged? Is it intended that it should happen before any other evidence is heard or at a later stage in the trial? The phrase 
''following the making of the ruling''
 seems to encompass both those options. We need some clarification on that. 
 My hon. Friend the Member for Woking is absolutely right in his general point that this must be done as quickly as possible in the interests of justice and, quite frankly, in the interests of administrative efficiency and saving public money, because in these cases time is money.

Harriet Harman: I will deal first with the question of costs. I refer the hon. Member for Hertsmere to the explanatory notes accompanying the Bill. Paragraph 668 says:
''The majority of costs to be incurred for additional prosecutor time and administration in prosecution appeals will fall upon the Crown Prosecution Service. It is estimated that various appeals and retrials will cost £1.3 million from the financial year 2005–2006. It is estimated that the Lord Chancellors Department will require seven additional staff, at a cost £0.2 million annually from the financial year 2005–2006 in relation to the additional appeal court capacity.''
 That is as helpful as I can be on the issue of costs. 
 The amendment raises the question about the time limit. There have been attempts throughout the criminal justice system to reduce delays. That is the whole thrust, whether it is the prosecution, the Lord Chancellor's Department, judges or the police. Everybody is agitated about delay. It is bad news for the defendant and for victims. It is bad news for the whole criminal justice system and gives it a bad name, and everybody thinks, ''What on earth are they doing talking about a case that happened two years ago?'' Everybody realises that it is a very bad thing. 
 The prosecution right of appeal slows down a case. That is inevitable. It is allowing something to happen right in the middle of a case that cannot happen at present. Our view is that it is important and in the interests of justice not to have a judge's ruling that finishes off a case, which should have been able to be tried and put to the jury. That is unsatisfactory for the victim and very unsatisfactory for public confidence in the criminal justice system. 
 The points about delay are well made, but we should not allow them to override what we are trying to do. The hon. Member for Woking is probably trying to say that he agrees with the principle, but in order to make it not cause the delay, he is saying, ''Please put a time limit in the Bill.'' However, we have decided to do that by way of the court rules. That is why I have set out the rudimentary chart, although the timings are not rudimentary, because they have already been discussed between the prosecutors, the 
 court and the Court of Appeal. The chart is by way of my assurance. We have not written it into the Bill. I ask the Committee to reject the hon. Member for Woking's amendment and not write it into the Bill. However, I ask the hon. Gentleman to accept the assurance that when he says, ''These things need to be done overnight,'' that is exactly what is intended to happen. Even when the prosecution say that they would like an adjournment to consider whether the case will come back the next day and notify the court that they intend to appeal, at that point the Crown court officials will check with the Court of Appeal registrar. They will find out what the situation is and when the Court of Appeal might be able to hear the appeal. The next day, when the prosecutor returns and says, ''Yes, I do intend to appeal,'' the judge will have the information about how long it would take to go up to the Court of Appeal. They can then say, ''We should try to expedite this,'' or ''We cannot go.'' 
 It is envisaged that on day one the judge will say that he or she is minded to give the ruling. Things will then swing into action. Overnight, the CPS will have to make high-level decisions. On day two it will become clear whether an appeal will happen, and the Court of Appeal will decide whether it is expedited. In an expedited case, the intention is that it will take place within a few days. 
 Let me say two things. First, I have been assured that that is the agreement that has been reached about how it should be done. That assurance has not been plucked out of the air, and an awful lot of work has been done on how it could be organised. Secondly, the reason why I can give the assurance is not only that everybody has been working on it, but that everybody is very determined to cut down the existing delays, and certainly not to allow new ones to burgeon. 
 Let me give the hon. Gentleman some helpful information about numbers. The Law Commission looked at the numbers issue. They looked at it by way of judges' rulings that gave rise to successful defence appeals in the Court of Appeal. We have looked at what the Law Commission has said about numbers and have made our own assessment. We concluded that—I will give the relevant chart to hon. Members, or write to them—annually, the total estimated number of appeals will be between 100 and 150, of which non-expedited cases will be 80 to 120 and expedited ones 20 to 30. That is the order of magnitude. I would hate to think that non-expedited cases were lolling about in a no man's land. Perhaps ''non-expedited'' is not the right word, because it implies a lack of urgency. However, in spirit, they all need to be on the front foot. Expedited is the fast track, but we do not want the non-fast track to be slow. Those are the numbers. People who have gone through this with a great deal of care believe that the timings that I have set out could be put into the court rules, ensuring that delay—we are all enemies of delay—will not be caused by this important change, which is a matter of principle. Delay causes a great loss of confidence in the criminal justice system. 
 I can see that the hon. Gentleman is girding his loins for an onslaught, by way of a vote on his amendment. I put it to him that we do not want to be 
 too rigid. It may well be that there are some cases in which a two-day delay is entirely reasonable. In principle, the right of the prosecution appeal is important enough not to have a primary legislation ruling. We would have to write it into the Bill that it would be possible to apply out of time, otherwise it would just be daft. Instead of writing one day to apply out of time into the Bill, why not have court rules in order to do it in one day? That is how we intend to proceed. 
 I ask the hon. Gentleman not to insist on his amendment, on the basis of my assurance.

Humfrey Malins: The Solicitor-General is doing her best with a poor set of cards. Sometimes one is dealt a strong hand at bridge, and sometimes not, and she has not been dealt a strong hand in this case. It is not her fault, but she is unable to deal with the issues that have been raised, not least the good point made by my hon. Friend the Member for Hertsmere, who asked her what was meant by the phrase,
''following the making of the ruling''.
 How soon is soon? What is ''following a ruling''? We simply have not heard. It is not the Minister's fault but, as the Government have already tabled hundreds of amendments to the Bill, she might have tabled another to make the clause read, ''immediately following the making of the ruling''. We would then have known. As it is, the Bill gives the prosecution an absolute right to appeal against a ruling if, following the ruling, it tells the court that it intends to appeal. 
 What if a barrister goes home on a Thursday—let us say that the court is not sitting on Friday, for one reason or another—and then says to the judge next Monday or Tuesday, ''I have been thinking about this matter, your honour, and I have decided to appeal''? The judge might say, ''Well, that was three days ago.'' ''Yes,'' says the barrister, ''but I am just working according to the statute, your honour.'' The judge is then shown the statute, and the barrister says, ''It simply says that I have to tell you that I intend to appeal following the making of the ruling. It doesn't say how soon after. That's why I've left it for three days and have thought about it.'' The Minister has not dealt with that point, and that is very unsatisfactory. 
 The Minister says that everyone has been working on the clause, and mentions that agreements have been reached and that the Law Commission has been making assessments. I dare say that many people have been working on the clause, but I suspect that they are all from the Home Office team, and I do not suppose that they have been to the Crown courts and discussed nuts and bolts with the listing clerk, the senior clerk and the deputy clerk.

James Clappison: Does my hon. Friend agree that it follows from what we have heard that most of the cases will be non-expedited? In most, if not all, of those non-expedited cases, the jury presumably will be discharged, and all the time spent by a court hearing evidence after the judge has made his ruling but before the prosecution imparts its intention to make an appeal will be wasted. Meanwhile, costs will run up.

Humfrey Malins: Yes. My hon. Friend again hits on a point that the Minister will not find it easy to deal with. He rightly suggests, and the Minister accepts, that the majority of the cases—possibly four out of five—will be non-expedited.

Harriet Harman: I am sorry to cut the hon. Gentleman off in the middle of his answer to the intervention of the hon. Member for Hertsmere. The hon. Member for Woking suggests that the time limits that I have given, which are the basis of my assurance to the Committee, were dreamt up in a Home Office ivory tower. He suggests that everyone will know or think it plain common sense that the limits mean absolutely nothing and are not based on anything.
 I reassure the hon. Member for Woking that it has been valuable for the Home Office to be involved in discussions about the timings, but there has also been detailed discussion between the prosecutors and the courts. The provisions have been thought through at a front-line level. The people on the ground think that the provision is workable. Perhaps I might ask the hon. Gentleman to acknowledge that, as this is an intervention.

Humfrey Malins: I accept what the Minister says, but it is a fanciful thought that Crown court staff across the country think that the provision will be at all workable. I am distressed that 80 per cent.—four fifths—of appeals are likely to be non-expedited, because as far as I can make out, we have no idea how long a non-expedited appeal will take. The amended chart implies that, in the case of an expedited hearing to the court of appeal, the whole matter will be dealt with in a week or even less. However, the chart does not deal with non-expedited matters at all. Might not non-expedited cases take much longer?

Harriet Harman: May I respond to the hon. Gentleman's point by saying that the interlocutory appeal was developed at the instigation of the senior judiciary and in consultation with them. This is not an ivory tower job. The hon. Gentleman may think that it will not work, but everyone else hopes and expects that it will.

Humfrey Malins: I sometimes think that the senior judiciary live in ivory towers; they seem not to know where Kingston Crown court is, never mind the dross that we have to try when we sit there. They might well have crafted a few thoughts, but nuts and bolts problems remain, and I think that the Minister has accepted that.

James Clappison: Does my hon. Friend share my curiosity at whether, after all the deliberations and consultations with practitioners, ''following'' in 51(3)(a) means before any other evidence is heard, or whether it would allow an application to be made after further evidence has been heard? If that is the case, at what point after such evidence has been heard? That time may be wasted.

Humfrey Malins: My hon. Friend puts in different words a point that he made earlier; what does ''following'' mean? Does it mean immediately following? What can be heard and what time will be wasted? The Minister must recognise that these are real concerns.
 The Minister must also accept that discharging a jury will be very expensive. The Minister seemed to be saying that in expedited cases the jury would be more likely to be discharged—[Interruption.] It is the other way around, is it? I am extremely glad to hear that because in non-expedited cases it would be ludicrous to anticipate the same jury remaining to hear cases. They will simply not be around for another three, four or six weeks.

James Clappison: Months.

Humfrey Malins: Months, even.

David Heath: My reading of clause 53(2) on expedited appeals is that the judge has discretion only to adjourn rather than discharge the jury. It poses the question of what happens if an expedited appeal is subsequently appealed to the House of Lords under the later provision. Will the judge still have the discretion to discharge the jury? If not, an empanelled jury could hang around for ever.

Humfrey Malins: That is another extremely good question to which we have not received an answer. We on this side of the Committee are trying to stimulate a debate and to tease out—to use a favourite phrase of my hon. Friend the Member for Hertsmere—from the Government just what they mean by these clauses. It is scandalous that we are not told this afternoon how long it is envisaged before a non-expedited hearing takes place. When my hon. Friend the Member for Hertsmere mutters ''months'', I fear that he is close to the mark. It is because the Government have been unable to give any satisfactory answers that we are testing the water, and I have my troops at the ready. If Committee members have been listening carefully to the arguments, I know how they will vote.
 I admitted straight away that my amendment is badly drafted. However, I put it before the Committee to inject a little urgency into the debate, so I shall put amendment No. 987 to the vote. 
 Question put, That the amendment be made:—
The Committee divided: Ayes 6, Noes 9.

Question accordingly negatived. 
 Amendments made: No. 945, in 
clause 51, page 33, line 4, at end insert— 
 '(4A) Where the ruling relates to two or more offences— 
 (a) any one or more of those offences may be the subject of the appeal, and 
 (b) if the prosecution informs the court in accordance with subsection (3) that it intends to appeal, it must at the same 
time inform the court of the offence or offences which are the subject of the appeal.'.
 No. 946, in 
clause 51, page 33, line 6, after 'effect' insert 
 'in relation to the offence or offences which are the subject of the appeal'.
 No. 947, in 
clause 51, page 33, line 8, leave out 'Where' and insert 
 'If and to the extent that'.—[Ms Harman.]
 Clause 51, as amended, ordered to stand part of the Bill.

Clause 52 - Appeals against certain other rulings

Amendment made: No. 948, in 
clause 52, page 33, line 23, leave out subsection (4) and insert— 
 '(4) Where a ruling relates to two or more offences— 
 (a) any one or more of those offences may be the subject of the appeal, and 
 (b) if the prosecution informs the court in accordance with subsection (2) that it intends to appeal, it must at the same time inform the court of the offence or offences which are the subject of the appeal. 
 (5) The prosecution may not inform the court in accordance with subsection (2) that it intends to appeal unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to the offence should be acquitted of the offence if either of the conditions mentioned in subsection (6) is fulfilled. 
 (6) Those conditions are— 
 (a) that leave to appeal to the Court of Appeal is not obtained, and 
 (b) that the appeal is abandoned before it is determined by the Court of Appeal.'.—[Ms Harman.]
 Clause 52, as amended, ordered to stand part of the Bill.

Clause 53 - Expedited and non-expedited appeals

Humfrey Malins: I beg to move amendment No. 989, in
clause 53, page 33, line 37, leave out 'may' and insert 'must'.

James Cran: With this it will be convenient to discuss amendment No. 990, in
clause 53, page 33, line 39, leave out 'may' and insert 'must'.

Humfrey Malins: We are moving to the issue of expedited and non-expedited appeals. My amendments would replace the word ''may'' with ''must''. Let us briefly consider the context. The prosecution may, for example, some time later—possibly a long time later—have told the court that it intends to appeal against a ruling and the judge may be called on to decide whether the appeal should be expedited; we shall assume that he decides that it should. According to subsection (2), the next thing that the judge may do is order an adjournment. It seems to me that he would have to order an adjournment. I am trying to get to the simple language of the provision. If the judge may grant an adjournment, he does not have to; if he does not have to grant an adjournment, I do not understand what is going on. The court will not be seized of the matter because the case would then go to the Court of
 Appeal, where the counsel would disappear to conduct it. It strikes me that the judge must—not may—order an adjournment; ditto if the judge decided that the appeal should not be expedited. He must order the adjournment or discharge the jury. If he will not do either thing, I am at a loss to know what he is actually doing. I hope that I have not misunderstood the position.

David Heath: Would the provision enable account to be taken of multiple proceedings or multiple defendants where other proceedings, except those that are held up by the process of appeal, will continue with the same jury and court?

Humfrey Malins: The hon. Gentleman raises the point that I thought the provision referred to; a sort of multiple proceedings case. I still find myself reading the clause and trying to understand what it means in plain English. I am convinced that it means that if the judge decides that there should be an appeal and that it should be expedited, he may order an adjournment. What is to happen if the judge declines to order an adjournment, because he does not have to?

David Heath: My assumption is that the measure would accommodate multiple counts where not all proceedings have to be adjourned on the basis of the specific appeal against a ruling. However, I agree with the hon. Gentleman that it is not clear from the clause that that is what the Government intend. It is equally clear to me, as it is to the hon. Gentleman, that in the circumstances in which that particular ruling is being appealed against, proceedings on that count must be adjourned or the jury discharged if that is the only count. Therefore, proceedings effectively fall to be terminated pro tem until the result of such an appeal is known. At the least, the Minister might consider the wording and bring back something more appropriate.
 With your permission, Mr. Cran, and in order to avoid having to make any contribution on clause stand part, I wonder whether I might deal with a related issue that I mentioned earlier, which is hat directly associated with the power of the judge to order an adjournment.

James Cran: I am of the opinion that such propositions seldom work. I think that we should deal with that point when we come to it.

David Heath: I am grateful, Mr. Cran. I am happy to deal with that point later.

Harriet Harman: Fundamentally, the hon. Member for Somerton and Frome is right that we need to give the judge flexibility and discretion, because a lot of different things could be going on.
 Where the prosecutor indicates an intention to appeal, both amendments would replace the judge's discretion to order an adjournment with the obligation to do so. The first amendment applies to cases where the judge considers that the appeal should be expedited. The second applies to cases where the judge considers that the appeal should not be expedited. As I said, the procedures will be operated as I set out in the chart. The detail will be set out in 
 rules of court and, if necessary, in practice directions or other guidance issued by the Court of Appeal. 
 The idea is that following the prosecutor's oral indication of an intention to appeal, the judge will express an initial view in open court as to which of the two appeal procedures is appropriate; expedited or non-expedited. Normally there will be an overnight adjournment as provided for under clauses 51 and 52, and where that happens, the opportunity will also be taken by the court authorities to ask the Court of Appeal whether, in the light of the judge's views on the preferred appeal route, an expedited appeal is realistic in the circumstances. That point can be seen on the chart.

Humfrey Malins: To help the Committee, is there a list of examples of cases where the judge might think it more appropriate to have a non-expedited appeal? How long does the right hon. and learned Lady think that it would take to conclude a non-expedited appeal?

Harriet Harman: It might be that a non-expedited appeal arose on an appeal from a ruling made before a jury had been sworn in; it might be needed quickly, but the jury would not be standing by.
 On the following day, there will be another hearing before the Crown court, when the prosecution will make it clear whether it wishes to appeal. The clerk of the court will also inform the judge of the results of the deliberations with the Court of Appeal authorities, and the judge will indicate in open court which appeal route should be followed. 
 Turning to the amendments, the judge's decision may be accompanied by a decision to adjourn, but that will not always be the case. For example, as the hon. Member for Somerton and Frome pointed out, when there is a trial of several co-defendants, the trial of some defendants will continue. They may not be affected by the appeal, or a defendant may be on trial for several offences and the appeal may affect only one. In those circumstances, the trial of any offences not caught by the appeal could continue. 
 I am not sure that I have an immediate answer to the question about how long an unexpedited appeal would take, but it would take place promptly. I am not sure whether there has been any practical discussion about that and I shall let the hon. Member for Woking know. 
 I take the point that an adjournment would be appropriate in relation to a ruling and an offence subject to appeal, particularly when the appeal is not to be expedited, but the amendments do not take account of the possible complexities that we discussed on previous amendments. Rather than trying to deal with all the possible situations that may arise, it is better to adopt our approach in the Bill and to give the judge discretion to grant an adjournment. 
 I invite the hon. Gentleman to withdraw the amendment. We do not need to try to envisage all the possible scenarios because we can leave that to the judge in the first instance. The judge will have a grip on the case and can decide what should be done.

Humfrey Malins: I do not feel that I have had a full answer, although the Solicitor-General helpfully did
 her best to give me one. The amendments are probing and it has emerged from our discussion that quite a lot of information must be laid down clearly in rules to be drawn up subsequently and probably in practice directions from the Court of Appeal. If we cannot have the information in the Bill, it must be set out clearly elsewhere so that those affected will understand where it is and that they should abide by it. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

David Heath: I shall now return to the subject that I incorrectly tried to introduce earlier. There is provision for a judge to order an adjournment or to discharge a jury. One of the factors to be taken into account is the time scale of any prospective appeal and whether it is sensible for a jury to wait, or more sensible to have a fresh trial if the decision is reversed and the case is subject to trial proceedings.
 Clause 53(4) relates specifically to the trial judge or the Court of Appeal. If it has been decided that an appeal should be expedited and then that it should not be expedited, for reasons that I am not clear about—I can imagine circumstances in which that would be the case—the clause allows the judge or the Court of Appeal to restart the process in terms of deciding whether adjournment or discharge of the jury is more appropriate. I am not clear how that relates to clause 56, which refers to an appeal to the House of Lords. If an appeal has gone to the Court of Appeal and subsequently to the House of Lords, there seems to be no provision for the poor old trial judge and the even poorer body of men and women who comprise the jury to have any respite from their prolonged period of confinement, or to allow for the discharge of those who are subject to an adjournment. That seems to be an omission. 
 The circumstances would not arise often, but I do not see any discretion—if it is found necessary under clause 53(4) for explicit provision to be made—for the judge to revisit the decision on whether to discharge the jury in the case of an appeal that has not been expedited. There is no similar provision to cover the circumstances in which a decision of the Court of Appeal is appealed to the House of Lords. That would, inevitably, take place over a longer time and it would be sensible for the jury to be discharged. I do not see explicit provision for the original trial judge to make that decision. Can the Solicitor-General explain whether that decision is available to the trial judge or would the process be in a state of suspended animation until the conclusion of the consideration by the House of Lords?

Harriet Harman: Clause 53(4) is designed to meet that eventuality. One of the circumstances that might change might be that the story does not end in the Court of Appeal. The matter might go to the House of Lords. Therefore,
 ''If he decides that the appeal should be expedited, he or the Court of Appeal may subsequently reverse that decision and, if it is reversed, the judge may act as mentioned in subsection (3)(a) or (b)'',
 So, it can start expedited. That means that the judge has three options. He can decide to adjourn the case, to continue with it, or to discharge the jury even on an expedited case. If the case goes to the Court of Appeal and—where the original decision was to adjourn—it is not realistic to go back because it is then to go to the House of Lords, subsection (4) allows a reversal. It might be that the Court of Appeal rules against the prosecution. The prosecution might then indicate that it intends to appeal, at which point the Court of Appeal can rule that it will not then be expedited. That is how it will operate. 
 The hon. Member for Somerton and Frome is looking puzzled. However, this matter is straightforward. The judge at first instance decides whether it is expedited or non-expedited. However, we do not want that decision to be frozen because it might become inappropriate if circumstances change, or the argument turns out to be more complicated. Therefore, subsection (4) allows for its reversal.

David Heath: The Solicitor-General has correctly divined that I am puzzled. I have not followed her argument, because she seems to be stretching the definition of an expedited appeal in the Court of Appeal to encompass proceedings in the House of Lords subsequent to that appeal's having been determined—unless we are discussing an expedited appeal process that includes the House of Lords. The wording of the Bill makes no provision for that decision to be taken by the House of Lords, only for the Court of Appeal to act under clause 53(4). I hope that I am not being pedantic in saying that the construction put by the right hon. Lady on that subsection cannot really be held to deal with the specific circumstances that I have described. It deals with a set of circumstances, but not those in which, at the end of the expedited appeal, it is appealed to the House of Lords, where it is not a matter of being expedited or unexpedited, it is simply an appeal to the House of Lords on a point of law. There needs to be provision for the trial judge, in the first instance, to be able to discharge the jury under such circumstances. If the Committee is satisfied that that is encompassed by clause 53(4), I am prepared to accept it, but it does not seem to me to be the case.
 Question put and agreed to. 
 Clause 53 ordered to stand part of the Bill.

Clause 54 - Continuation of proceedings for

Amendment made: No. 949, in 
clause 54, page 34, line 7, leave out subsections (2) and (3) and insert— 
 '(2) Proceedings may be continued in respect of any offence which is not the subject of the appeal.'.—[Ms Harman.]
 Clause 54, as amended, ordered to stand part of the Bill.

Clause 55 - Determination of appeal by Court of Appeal

Harriet Harman: I beg to move amendment No. 950, in
clause 55, page 34, line 19, leave out 
 'the termination of the hearing of'.
 This is a simple drafting amendment. It has been suggested that the word ''termination'' could imply that the Court of Appeal might make its decision at some other point in appeal proceedings than their end. In short, the phrase is otiose. The removal of the word removes that possible suggestion. 
 Amendment agreed to.

Harriet Harman: I beg to move amendment No. 951, in
clause 55, page 34, line 21, leave out subsections (2) and (3) and insert— 
 '(2) Where the Court of Appeal confirms a ruling, it must, in respect of the offence or each offence which is the subject of the appeal, order that the defendant in relation to the offence be acquitted of the offence. 
 (3) Where the Court of Appeal reverses or varies a ruling, it must, in respect of the offence or each offence which is the subject of the appeal, do any of the following— 
 (a) order that proceedings for the offence may be resumed in the Crown Court, 
 (b) order that fresh proceedings may be instituted in the Crown Court for the offence, 
 (c) order that the defendant in relation to the offence be acquitted of the offence.'.
 The amendment deals with a situation after the Court of Appeal has disposed of a prosecutor's appeal. Unfortunately, clause 55, although not defective, could lead to unnecessary confusion in some cases. The clause enables the Court of Appeal to confirm, reverse or vary the ruling appealed against. In all cases, it then has the discretion to acquit the defendant. If the court varies or reverses the ruling, the Court of Appeal has the discretion to order the resumption of the proceedings if the trial has been adjourned pending the outcome of the appeal, or fresh proceedings, if the jury—where there is one—has been discharged. I would stress that the Court of Appeal may only make such an order if it considers that it is necessary in the interests of justice to do so. 
 The problem is that the court is not actually required to make any order under subsections (2) or (3). Its powers to order an acquittal, resumption or fresh proceedings are precisely that: powers rather than obligations. In theory, therefore, the court could confirm, reverse or vary the ruling appealed against, then make no order as to what should happen to the defendant or the trial. 
 Although it is highly unlikely that the Court of Appeal would fail to act under subsections (2) or (3), we consider that it would be preferable to make it clear that if the court confirms the judge's ruling and so the prosecutor's appeal fails, the defendant must be acquitted. If the Court of Appeal reverses or varies a ruling, it must either acquit the defendant or, if it is 
 necessary in the interests of justice to do so, order the trial to resume or fresh proceedings to begin.

David Heath: I am glad that the amendment deals with the issue I raised earlier about acquittal in the case of a ruling being confirmed.
 I have a problem with the situation in which a ruling has been reversed or varied. The Court of Appeal, having heard the case of a ruling that was fatal to the case of the prosecution, may uphold that appeal and reverse the decision of the trial judge. In such circumstances, it seems odd that the Court of Appeal would then acquit the defendant when one would have expected that that might be the job of a jury—having heard the full prosecution and defence case—to make that acquittal, given that the prosecution case could then continue without the difficulties introduced by the original ruling. 
 The Court of Appeal will have heard only the evidence in respect of the particular ruling made by the trial judge and its effect on the case. It will not have heard any other evidence that might have been adduced by the prosecution prior to that ruling. It would seem perverse for the Court of Appeal to have the power to dismiss a case having upheld the appeal without having heard all the prosecution evidence. Why on earth should it have the power of acquittal under those circumstances? There may be an argument that I have not followed, but I would have expected the power of acquittal to be there if the appeal were dismissed. That is the basis of the procedure that the right hon. Lady is introducing. 
 I could conceive of a minor variation where the prosecution accepted the fact that although the ruling had been varied it was still fatal to the case, but there is no provision for the prosecution to have any say in whether that happens. Under the provision, it is simply for the Court of Appeal, having decided to reverse or vary a ruling, to determine the acquittal of a defendant. That seems peculiar in terms of both justice and procedure, so I have to ask why the provision is in the Bill.

Harriet Harman: As the hon. Gentleman has anticipated, the order of the Court of Appeal will follow the logic of its ruling. There will be some cases in which one would not want to require the Court of Appeal to follow that order because such cases would have to go back to the judge to make the ruling at first instance. For example, if it transpired that the defendant had suddenly become terminally ill, everybody might agree that the case should stop and that an acquittal should be ordered. The question is whether one sends the case back to the judge at first instance or whether one does it there and then in the Court of Appeal. The provision takes account of the fact that there may be circumstances that, regardless of the overturning of or variation in the ruling, point to the defendant's acquittal. For example, the health of the defendant might not have been known when the case was first heard.

David Heath: Under what circumstances would the Court of Appeal hear evidence on the health of the defendant? What part would that play in the legal arguments on the admissibility or otherwise of
 evidence under the ruling of the judge in the first instance?

Harriet Harman: I think that the prosecution could accept that the defence had indicated the situation to them. If the defence produced a medical report, the prosecution might accept it and the defence could say to the Court of Appeal, ''You have made your ruling, but we ask you not to order a fresh trial.'' The Court of Appeal would look over at the prosecutor and ask, ''Do you object to that?'' The defence would have made it clear that the request was on the grounds of the defendant's terminal illness, which had just been discovered. The prosecution would get up and say, ''We would not object to the case closing at the first instance.'' The Court of Appeal would be able to close the case there and then. I do not envisage that such cases will be frequent, but what is the point of sending a case back down to the first instance court if the prosecution do not want to carry on with the case at the last minute because something has cropped up?
 Amendment agreed to. 
 Amendment made: No. 952, in page 34, line 31, at end insert 
'in respect of an offence'.—[Ms Harman.]
 Clause 55, as amended, ordered to stand part of the Bill. 
 Clauses 56 and 57 ordered to stand part of the Bill.

Clause 58 - Effect on time limits in relation

Question proposed, That the clause stand part of the Bill.

Simon Hughes: I should like to ask the Solicitor-General one question, although it is not a specific consequence of the suggested wording to amend the Prosecution of Offences Act 1985.
 I shall use an example without prejudice to the issues, although I am conscious that this case has not yet been tried. There is concern, which has been expressed from many quarters over a considerable time, that delay can occur in the preliminary stages of criminal proceedings at the instigation of solicitors, defendants or those advising on the medical condition of defendants. Such delay prevents the normal time limits from running within which certain steps must be taken—the time limit for the bringing of charges and the time limit on holding someone at a police station. It is publicly known that that was the case in relation to the arrests that followed the deaths of the two young girls in Cambridgeshire last year. I am not saying anything that was not in the public domain. As a result of applications by the defence for regular adjournments and applications to do with mental health and so on, the dates on which the defendants were taken back to the magistrates court were put back for a considerable time. It is a common issue; that was not a unique experience. 
 The normal provision that a person can be held for no longer than a certain time protects people's civil liberties and prevents them from being held indefinitely, but that is abused—I use the word widely—if the two issues are not interrelated. For example, there should always be a requirement for someone to be interviewed. If one is imposing a requirement on the prosecution to interview a person by a certain time in order to decide whether a charge should proceed, the defence should properly be expected to attend an interview in the same time. At least there should be a limit: the defence should not be able to continue to delay the proceeding. 
 Someone who is arrested may say that they want to see not just a solicitor but a doctor, or the solicitor may say, ''I want the person to see a doctor, because I am not sure that they would be fit, whether physically or mentally, to plead or to answer questions''. My understanding—I do not pretend to be an expert on this procedural set of issues—is that again there can be considerable delays, which conflict with the idea that there is a time limit and that everyone will proceed quickly. 
 I have not given the Solicitor-General notice; I am not trying to trap her into a quick answer. She may not have thought about the issue or discussed it with her colleague, the Attorney-General, or with the Director of Public Prosecutions, but there is concern that there can be an indefinite delay to the current time requirements because people use arguments to do with inability to attend or to get translators or medical evidence. I ask the Solicitor-General to write to me and colleagues before Report, saying whether the Government are alert to those concerns, have received other representations and are minded to make a proposal to deal with the issue. In principle, proposals to deal with it would be welcome. I should be happy to be consulted, as I am sure Conservative Members would be, if the Government thought fit.

Harriet Harman: The clause looks a bit obscure at first sight, but its purpose is straightforward. It relates to the situation where the prosecutor appeals before the beginning of the trial.
 Section 22 of the Prosecution of Offences Act 1985 allows the Secretary of State to set time limits, both general and, more specifically, relating to the custody of the defendant, which apply to the preliminary stages of criminal proceedings. The time limits do not apply to the trial itself. If the prosecution were to appeal against a terminating ruling made before the start of the trial, the time limits prescribed under section 22 of the 1985 Act would continue to apply. The time allowed for the preliminary stages, or for the defendant's custody, would expire, thus bringing them to an end or requiring the defendant to be released before the appeal had been concluded. The clause remedies that potential problem by suspending the time limits pending the outcome of the appeal. 
 I shall consider the hon. Gentleman's additional points about issues of delay. I give an undertaking to write to him, and we shall consult him if we consider making new proposals on Report or later. 
 Question put and agreed to. 
 Clause 58 ordered to stand part of the Bill.

Clause 59 - Restrictions on reporting

Harriet Harman: I beg to move amendment No. 953, in
clause 59, page 35, line 33, at end insert 'or'.
 This is a simple drafting amendment. As it stands, the clause could be interpreted to mean that the judge can only make an exemption that covers both paragraphs (a) and (b) of subsection (2) simultaneously. The amendment makes it clear that the judge can make an exemption for the matters described in subsection (2)(a) or (b), or both. 
 Amendment agreed to. 
 Question proposed, That the clause, as amended, stand part of the Bill.

Simon Hughes: I have a minor point to make that is relevant to the clause, but also relates to other matters that we have debated elsewhere in the Bill and to which we shall doubtless return. There is real concern about the way in which arrests, charges and criminal trials are reported and we have discussed that in Committee. The matter relates to periods before proceedings in the courts and to those proceedings. I know that the Solicitor-General and her colleagues are alert to that and there has been a frank and perfectly reasonable discussion with Lord Falconer and the Under-Secretary of State for the Home Department, the hon. Member for Leeds, Central (Hilary Benn).
 I want to make a constructive suggestion. In Committee, the matter has come into focus in the context of the double jeopardy debate, but it is also hugely relevant elsewhere. To put it bluntly, people increasingly feel that there is trial by media rather than trial by the courts. My suggestion is that, if the Government were minded to help us, we might have an opportunity for a discussion between the parties represented on the Committee—obviously, I include the hon. Member for North Down (Lady Hermon) in that—of the ways in which Government thinking has developed since the White Paper, so that better management of reporting might be achieved. Perhaps we could do that outside the Committee and before Report. 
 I do not have a final or theological view that there needs to be further legislation. As a Liberal, I instinctively react against laws restricting the freedom of the press. However, there has been abuse that prejudices fair trials. Such abuse could prejudice them in various directions and could relate as much to this type of proceeding as any other. Perhaps we might reflect on the reporting of proceedings and the restrictions on that in general and in the round, rather than compartmentally. I want to flag up the point that that would be a helpful discussion. I am sure that the issue will not go away during the passage of the Bill through this place and the House of Lords. The sooner we see whether there can be consensus and we can move the management of the issue on in the advancement of justice, the better.

Harriet Harman: The hon. Gentleman raises what, as he acknowledges, has been a recurrent theme in Committee. As he rightly says, the issue relates to what happens before proceedings, as well as during them, which is what we are addressing. I think that we all agree that nothing must be done that interferes with the administration of justice, but we also all agree that we want to defend the freedom of the press. The difficulty lies in balancing those two things. I know that any Department bringing forward proposals for change in law or practice would carry out a wide consultation and consult the Liberal Democrats and the official Opposition. The issue is difficult, but it is certainly not party political.
 At this stage, I cannot say anything beyond that in relation to the hon. Gentleman's points. As he has identified, the clause deals with the issue of reporting restrictions. It sets out very simply what can and cannot be reported. Obviously, alarm bells go off whenever any possible limitation on the press's right of freedom of expression is mentioned. Perhaps I can explain why the restrictions in the Bill are necessary. We had a long discussion about double jeopardy. The principles are the same, but the considerations in practice are slightly different. 
 The purpose of the restrictions is to prevent juries from learning of matters that may bias them for or against a defendant. In short, the restrictions are necessary to uphold the integrity of the trial process. Of course, as we have discussed, it might well be the case that that jury is actually waiting for the case to come back. There are particular reasons why reporting restrictions are required in the context of the prosecutor's right of appeal. 
 It is important that a jury, or a future jury, do not learn about the substance of a ruling or the appeal against it. The reasons for that are obvious. If the judge rules, for example, that the trial should be brought to an end as an abuse of process, it would be prejudicial to the prosecution case for the jury to learn of the reasons for that ruling. Conversely, if the prosecution wins its appeal, it would be prejudicial to the defendant for the jury to learn why the terminating ruling has been thrown out by the Court of Appeal. 
 The reporting restrictions are particularly necessary in that they cover an interlocutory appeal, made under circumstances where a resumption of the trial may be ordered before those very jurors. It is not just a matter of potential future jurors, but those still empanelled. We want the trial to remain fresh in the jury's mind, but we do not want them to be prejudiced by reading reports in the newspapers about what has happened in the Court of Appeal. 
 The detailed approach taken in the clause is based closely on the precedent of the reporting restrictions applied to preparatory hearings under the Criminal Justice Act 1987 and the Criminal Procedure and Investigations Act 1996. We are unaware of any suggestion that those restrictions have worked other than very well in practice. 
 To sketch in the main features of the scheme, the restrictions are not complete. They do not prevent the reporting of the basic facts of the case, including 
 details of the court, judge, defendant and lawyers involved, and the offences at issue, and they are automatically lifted at the conclusion of the trial. 
 The clause allows the judge, the Court of Appeal or the House of Lords to lift the restrictions, either in part or completely. In addition, subsection (6) allows the defendant to make representations against such an order. In such circumstances the Court would then have to consider whether lifting the restrictions was in the interests of justice. 
 The clause also deals with potential conflicts of interest relating to reporting restrictions in cases where there are a number of defendants. Subsection (8) deals with the issues that may be reported, and sets them out in detail. The attempt is to be as open as possible, to allow as much to go on the record as possible, not to throw a cloak over the process to the point of being mysterious and to protect the situation until the end of the trial as far as the current—or any future—jury are concerned. 
 Question put and agreed to. 
 Clause 59, as amended, ordered to stand part of the Bill.

Clause 60 - Offences in connection with reporting

Harriet Harman: I beg to move amendment No. 954, in
clause 60, page 37, line 44, after 'of', insert— 
 '(i) before the relevant date,'.

James Cran: With this it will be convenient to discuss Government amendment No. 955.

Harriet Harman: The amendments are straightforward and wholly consequential upon part 2 of the Justice (Northern Ireland) Act 2002. Section 22(1) provides that the Attorney-General for England and Wales shall no longer be the Attorney-General for Northern Ireland. Clause 60(10)(b) of the Bill provides that prosecutions for breaches of reporting restrictions can only be brought in Northern Ireland with the consent of the Attorney-General for Northern Ireland. Therefore, the subsection is no longer apt.
 We have decided that any prosecutions under this clause should be brought in Northern Ireland instead, with the consent of the Director of Public Prosecutions for Northern Ireland. That will provide sufficient safeguard on the use of the powers.

Simon Hughes: I hope that it is not arrogant or improper of me, but I know that the hon. Member for North Down, were she here, would greatly welcome the amendments. If I may, I should like to do so on her behalf. Having heard her hold forth on the subject, I will report back to her so that she can reprimand me if I am acting improperly. The provisions seem constitutionally proper, and it is important to get the matter right. There has been concern in Northern Ireland about the lack of integrity and separation of the system, given that the decision was taken some
 time ago to have a separate prosecutorial process to maintain the independence of the criminal justice system in Northern Ireland.

Harriet Harman: I am sure that the hon. Member for North Down will be glad to hear that the hon. Gentleman has championed her cause in her absence.
 Amendment agreed to. 
 Amendment made: No. 955, in 
clause 60, page 37, line 45, at end insert 
 'or 
 (ii) on or after the relevant date, the Director of Public Prosecutions for Northern Ireland. 
 (11) In subsection (10) ''the relevant date'' means the date on which section 22(1) of the Justice (Northern Ireland) Act 2002 (c.26) comes into force.'.—[Ms Harman.]
 Question proposed, That the clause, as amended, stand part of the Bill.

Simon Hughes: This is my fourth and last contribution of the day, and it goes back to my debate with the Solicitor-General on the previous clause. It is welcome that proceedings for an offence under the clause require the consent of the Attorney-General in England and Wales or of the equivalent officer for Northern Ireland, and that is clearly proper. However, the clause raises a number of substantive issues.
 First, the penalty envisaged in subsection (9) is a fine on summary conviction, which will not exceed level 5. Given that we are talking about a corporate offence, that seems unduly lenient. I take a hard view of those who interfere with the criminal justice system, and we must reserve significant penalties for them, including imprisonment. 
 That raises another issue, on which the hon. Member for Beaconsfield (Mr. Grieve) touched when he made a parallel with health and safety legislation. Indeed, other colleagues also made similar points a couple of weeks ago. The provisions are quite properly intended to ensure that individuals are held liable, and there can be no escape from liability simply because everyone in an organisation says ''It's nothing do with us, guv.'' If that happens, responsibility can be passed up and down the management tree and across the boardroom, only to go out of the window at the end of the day. 
 The provisions are welcome, and I ask the Solicitor-General simply to note and reflect on the punishment point and to seek a more agreeable consensus. However, will she ask her Home Office colleagues—it is they who will be leading on this issue, although there will be other departmental interest—what has happened to similar proposals on corporate manslaughter? The Government are committed to them in principle, and they would provide for us to hold firms responsible for the most serious crimes in a way that is realistic and makes people take notice. You will recall, Mr. Cran, that that was the major issue after the ''Herald of Free Enterprise'' incident, and it arose again after the ''Marchioness'' incident, which occurred much closer to the Solicitor-General's home and mine. 
 I have three questions in that regard. First, will the Government look again at the appropriateness of the maximum fine? It is too low, and imprisonment should be permitted. Secondly, will they look at the issue in the context of punishment across the board for those who interfere with the course of justice to ensure that penalties are tough enough for breaches? Thirdly, will the perfectly proper way of holding corporate Britain to account under the system before us be reflected in an early announcement and early progress on corporate manslaughter? That could be adequately reflected in the Bill if the Government were minded to introduce such an offence, although I appreciate that consultation would be needed and it may not possible to introduce it before Report, because that would raise concerns about there not having been proper debate.

Harriet Harman: It is interesting that the hon. Gentleman mentions corporate manslaughter, and I readily acknowledge that there are difficulties in prosecuting it. Indeed, the first example that I sent him of terminal rulings that had finished a case but were not currently appealable was that of a corporate manslaughter case. Rulings in corporate manslaughter cases, as with all other rulings, will be able to be appealed against under the Bill.
 The hon. Gentleman also asked whether we are planning any changes with regard to corporate manslaughter. As he knows, my fellow Ministers have made statements about the issue being under continuous review. However, I take the point, as will my colleagues, that he is pressing for progress. 
 I think that my colleagues will also reflect on the point about the £5,000 punishment. That, again, has been a recurring theme, and as we draw to the twilight of the Bill, I can say that there has been consistency with all the other times that the Committee has voted on penalties at this level, on many of which concerns have been expressed. We want consistency, but the points made stand. 
 Clause 60 imposes sanctions for breaching the reporting restrictions set out in clause 59. Obviously, there cannot be restrictions without a sanction for breaking them. The clause defines in detail in subsections (2) to (4) who is guilty of an offence if clause 59 is breached. 
 Subsections (5) to (7) deal with situations when the breach has been committed by a body corporate. That 
 is required because any media containing a breach of the restrictions are likely to be operated by companies. 
 Subsection (8) applies the same general principles as subsection (5) to partnerships under Scottish law. The restrictions and the offences are United Kingdomwide so there is no question, for example, of a breach of English reporting restrictions being lawful in Northern Ireland. 
 I draw particular attention, as did the hon. Gentleman, to subsection (10) as amended. Proceedings in England and Wales under this clause may not be instituted without the permission of the Attorney-General. Proceedings in Northern Ireland may not be instituted without the permission of the Director of Public Prosecutions for Northern Ireland. 
 A person who is guilty of the offence is liable on summary conviction to a maximum of a level 5 fine which is, as the hon. Gentleman said, currently £5,000. 
 Question put and agreed to. 
 Clause 60, as amended, ordered to stand part of the Bill.

Clause 61 - Interpretation of Part 9

Amendment made: No. 956, in 
clause 61, page 38, line 7, at end insert— 
 '(1A) Where a ruling relates to two or more offences but not all of those offences are the subject of an appeal under this Part, nothing in this Part is to be regarded as affecting the ruling so far as it relates to any offence which is not the subject of the appeal. 
 (1B) In relation to an appeal under this Part in respect of a ruling which relates only to one offence, any reference in this Part to the offence which is the subject of the appeal is a reference to that offence. 
 (1C) Where two or more defendants are charged jointly with the same offence, the provisions of this Part are to apply as if the offence, so far as relating to each defendant, were a separate offence (so that, for example, any reference in this Part to a ruling which relates to one or more offences includes a ruling which relates to one or more of those separate offences).'.—[Ms Harman.]
 Clause 61, as amended, ordered to stand part of the Bill. 
 Further consideration adjourned.—[Mr. Heppell.] 
 Adjourned accordingly at seventeen minutes past Five o'clock till Thursday 27 February at ten minutes past Nine o'clock.